Appeals court hears arguments on Utah’s same-sex marriage ban

A panel of appeals court judges appeared torn yesterday about whether Utah voters and legislators who defined marriage as only between a man and woman violated the constitutional rights of same-sex couples who want to marry.

Three judges of the U.S. Court of Appeals for the 10th Circuit were considering a lower court’s decision that Utah’s ban on same-sex marriages could not stand in light of the Supreme Court decision last summer ordering the federal government to recognize same-sex marriage from states where they are legal.

But at the same time, the Supreme Court justices last summer did not recognize a constitutional right to gay marriages.

Utah’s lawyer, Gene Schaerr, told the judges they should not believe the Supreme Court “with a wink and a nod” was telling lower courts to recognize a constitutional right.

But Schaerr faced tough questions from two members of the panel, who said deference to voters and legislators could not come at the cost of a constitutional protection that applies to all.

Judge Carlos Lucero, who was nominated by former president Bill Clinton, said Utah had not shown how its desire to promote a man-woman model of marriage as the ideal for children was advanced by forbidding gays to marry.

Judge Jerome A. Holmes, nominated by former president George W. Bush, compared the case to the Supreme Court’s decision to get rid of laws that prohibited marriage between the races.

But at the same time, Holmes seemed troubled by the idea that Utah’s decision to protect traditional marriage was a violation of the Constitution.

The third member of the panel, Judge Paul J. Kelly Jr., who was nominated by former president George W. Bush, said he was not inclined to label Utah’s voters as “mean-spirited and bigoted” for preserving a traditional view of marriage.

The appeals court hearing was the first to review one of the unanimous judicial rulings from around the country that state bans on gay marriage cannot stand in the wake of last summer’s Supreme Court action.

The Utah ban, approved by 66 percent of those voting in 2004, was struck down in December by U.S. District Judge Robert Shelby in Salt Lake City.

Since then, federal judges in Virginia, Oklahoma, Texas and Michigan have made similar findings. Courts in Tennessee, Ohio and Kentucky have said those states must recognize gay marriages performed elsewhere.

Next week, the same 10th Circuit panel will review the Oklahoma decision, and the U.S. Court of Appeals for the 4th Circuit in Richmond will review Norfolk-based U.S. District Judge Arenda Wright Allen’s decision striking down Virginia’s laws.

The appeals in the nation’s regional courts are the intermediate stop in returning a question to the Supreme Court that the justices avoided the first time around – whether marriage is a fundamental right that under the Constitution may not be denied to same-sex couples.

Both sides in the ideological battle are surprised at the speed with which the legal challenges are proceeding. The cases in Denver, Virginia and the rest of the country could tee up the issue in time for the Supreme Court term that begins in October.

Gay marriage is now legal in 17 states and the District of Columbia, covering more than 40 percent of the nation’s population. The remaining states forbid same-sex unions, either through laws or constitutional amendments.

Utah is one, and its ban was challenged by two same-sex couples who want to marry – Derek Kitchen and Moudi Sbeity; and Laurie Wood and Kody Partridge – and by Kate Call and Karen Archer, who married in Iowa and want Utah to recognize their marriage.

Shelby ruled in their favor in December, becoming the first judge to strike down a state ban after the Supreme Court’s 5 to 4 June decision in U.S. v. Windsor that found part of the federal Defense of Marriage Act unconstitutional.

The court’s majority said the federal government cannot not deny federal benefits and recognition to same-sex couples who were married in states where gay nuptials are legal. The court said Congress’s decision to define marriage as only between a man and a woman had no rationale other than a discriminatory moral disapproval of gay couples.

Shelby said the reasoning behind the court’s decision should be applied to Utah’s ban.

“The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” Shelby wrote.

Shelby and then a panel of the 10th Circuit turned down Utah’s request to put the decision on hold while it was appealed. More than 1,200 couples were wed before the Supreme Court approved Utah’s stay request 17 days later.

The justices gave no reason for granting the stay and thus shed no more light on the court’s June decision in U.S. v. Windsor that has prompted the legal action.

On one hand, the opinion written by Justice Anthony Kennedy and joined by the court’s four liberals noted that defining marriage is traditionally a power reserved for the states.

On the other, the opinion dismissed Congress’s arguments as to why the federal government should recognize only traditional definitions of marriage. It said the arguments were mostly window dressing for unlawful prejudice based on sexual orientation.

There are lawsuits challenging those restrictions in all but five states – Alaska, Georgia, Montana, North Dakota and South Dakota. Appeals of judicial decisions regarding the bans are pending in five of the circuit courts of appeals into which the country is divided.

It could be months before the 10th Circuit panel rules. Its decision would be binding on the states within its jurisdiction: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

But New Mexico’s highest state court already took note of the Windsor decision and ruled unanimously that the state must allow gay marriages.